Impact of Significant December 18, 2013 Tennessee Supreme Court Premises Liability Ruling, Cullum v. McCool

A very important Tennessee Supreme Court ruling was published yesterday, December 18, 2013.  I believe this new opinion, Jolyn Cullum v. Jan McCool, 2013 WL 6665074, No. E2012-00991-SC-R11-CV (Tenn. 2013), will be talked about for years to come.  I also believe it could cause the Tennessee legislator to consider legislation to address this expansion of the potential liability of a premises owner when dealing with an intoxicated individual.  Ironically, I very recently wrote an article about the other important case on this issue, West v. East TN Pioneer Oil Co., 172 S.W.3d 545 (Tenn. 2005) (See Tennessee Defense Litigation post “Negligence – Can a gas station be liable for selling gas to an intoxicated individual who later causes an accident in Tennessee?”).  This new Cullum decision, in my opinion, expands the holding in the West case and places additional burdens on premises owners to take affirmative actions when dealing with intoxicated individuals even if those individuals did not become intoxicated on the premises.

FACTS:

In the Cullum case the plaintiff was struck by a vehicle in a Wal-Mart parking lot by another Wal-Mart customer.  The plaintiff had just finished shopping and was placing her groceries inside the trunk when she was struck.  Just before the accident, defendant, Ms. McCool, is alleged to have been ordered to leave the store when she attempted to fill a medication prescription.  She was allegedly ordered to leave because Wal-Mart employees believed Ms. McCool was intoxicated.  The complaint further alleges that Wal-Mart knew Ms. McCool was someone who had been in the store intoxicated on prior occasions and they knew she was alone and would be operating a motor vehicle.  ...

Negligence - Can a gas station be liable for selling gas to an intoxicated individual who later causes an accident in Tennessee?

Analysis:  Over eight years ago the Tennessee Supreme Court handed down the decision of West v. East Tennessee Pioneer Oil Co., 172 S.W.3rd 545 (Tenn. 2005).  This case set new precedent at that time and it is a good case to review because of the impact it can have on many negligence situations.  It primarily discussed and considered the foreseeability element in a negligence case.

In West, an individual who had been drinking alcohol on the night in question purchased gas from a convenience store gas station.  There were some disputed facts, however, it was plaintiff's contention that this individual was clearly intoxicated and the convenience store employees knew he was intoxicated when they sold him gas.  Additionally, an off-duty employee of the store actually assisted the intoxicated individual by pushing the correct buttons on the gas pump in order to activate the pump.  There was a dispute about whether all of these individuals knew the allegedly intoxicated individual was in fact intoxicated and whether or not he was the actual driver of the vehicle.  After the vehicle left the gas station, it struck another vehicle, causing severe injuries to the plaintiffs. 

The trial court dismissed the cause of action against the gas station.  The trial court basically found that under Tennessee law, the plaintiffs could not hold the convenience store liable under these circumstances.  On appeal, the Tennessee Supreme Court reversed this decision and found that:

we conclude that a convenience store employee owes a duty of reasonable care to persons on the roadways, including the plaintiffs, not to sell gasoline to a person whom the employee knows (or reasonably ought to know) to be intoxicated and to be the driver of the motor vehicle. Similarly, a convenience store employee also owes a duty of reasonable care not to assist in providing gasoline (in this case pumping the gasoline) to a person whom the employee knows (or reasonably ought to know) to be intoxicated and to be the driver of the motor vehicle. We stress that because [f]oreseeability is the test of negligence...

Tennessee Dram Shop Law - When can a bar, retailer or restaurant be found liable for accident caused by intoxicated individual under Tennessee Law?

In 1986, the Tennessee legislature created T.C.A. § 57-10-101 and T.C.A. § 57-10-102 in order to provide a statutory scheme for Tennessee Dram Shop liability.  These two statutes define when a bar, retailer or restaurant can be found responsible for selling alcohol to an individual that later causes injuries or death to another person while intoxicated from that alcohol.  You may wonder why it is called “dram shop” law.  “Dram shop laws are named after establishments in 18th Century England that sold gin by the spoonful (called a "dram").”  Quote from Findlaw article found here.

T.C.A. § 57-10-101 provides as follows:

The general assembly hereby finds and declares that the consumption of any alcoholic beverage or beer rather than the furnishing of any alcoholic beverage or beer is the proximate cause of injuries inflicted upon another by an intoxicated person.

As a result, in Tennessee the general rule is that, bars, retailers and restaurants can not be found responsible to third-parties for damages caused by an intoxicated individual for alcohol served or sold to that person.  However, T.C.A. § 57-10-102 provides some exceptions to this rule that need to be carefully considered. 

T.C.A. § 57-10-102 provides as follows:

Notwithstanding the provisions of § 57-10-101, no judge or jury may pronounce a judgment awarding damages to or on behalf of any party who has suffered personal injury or death against any person who has sold any alcoholic beverage or beer, unless such jury of twelve (12) persons has first ascertained beyond a reasonable doubt that the sale by such person of the alcoholic beverage or beer was the proximate cause of the personal injury or death sustained and that such person:

(1) Sold the alcoholic beverage or beer to a person known to be under the age of twenty-one (21) years and such person caused the personal injury or death as the direct result of the consumption of the alcoholic beverage or beer so sold; or